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Thursday, 14 December 2017

The European
Court of Human Rights’ recent ruling in the case N. v. Romania (decided on 28 November)has important implications in the areas of mental health detention
and community living. The applicant was a man diagnosed with schizophrenia who
complained about the legality of his detention in various psychiatric hospitals
since 2001, on account of unsubstantiated sexual assault allegations that had
never been reviewed in court. On 28 November 2017, the Court ruled that his
detention lacked a legal basis or justification at least since
2007 (the Court declined to examine the period before 2007, including the
initial decision to detain the applicant, for reasons of admissibility). In
addition, the Court held that the judicial proceedings for the review of the
applicant’s continued detention since 2007 had not afforded sufficient
safeguards against arbitrariness. Consequently, the Court found several
breaches of Article 5 (right to liberty) of the European Convention on Human
Rights and awarded the applicant 38,050 Euro in damages and costs. This is a
brief analysis of the main points of interest in the judgment.

The Court criticized the authorities’ failure to undergo
a “rigorous” assessment of the applicant’s needs or secure his release in conditions
that matched those needs despite a judicial order ending his compulsory
hospitalization issued at the beginning of 2017. The Court remarked that this
case was symptomatic of a systemic problem in Romania in that there was a lack
of social services to assist people transitioning from institutional living. Despite
the authorities’ formal adherence to international norms advocating for
community living, there was a failure to provide the applicant with suitable
services upon his release. In view of these circumstances, the Court took the unusual
step of demanding that the applicant be released “without delay […] in
conditions meeting his needs.” These findings and the wording of the remedial measure
create a crucial new opening in the Court’s jurisprudence in this area,
suggesting that Article 5 may be construed to imply a positive obligation
incumbent in State Parties to provide the community services needed facilitate
the release of individuals from unjustified mental health detention.

The Court also noted the superficial manner in which
national courts reviewed the necessity of the applicant’s ongoing detention
between 2007 and 2017. In particular, they failed to establish the main
criterion in domestic law for detention of this type, namely that the person in
question represented a danger to society. National courts impermissibly inferred
the existence of danger from allegations of sexual assault that had never been
proven in court and from the applicant’s diagnosis in itself. In that respect,
the Court recalled under Article 14 of the CRPD, “the existence of a disability
could not in itself justify a deprivation of liberty.” The successive sets of
proceedings on review were flawed for a number of additional reasons. Notably,
the Court criticized the ineffectual performance of the ex officio lawyers
appointed to represent the applicant through the years, who had either argued
in favor of his continued detention or had left the matter to the discretion of
the courts, and never got in touch with him before the hearings took place.

The Court warned that these deficiencies were likely
to give rise to other well-founded applications in the future. It therefore
indicated additional general measures to the Romanian State: to ensure that the
detention of individuals in psychiatric hospitals was lawful, justified and not
arbitrary; and to ensure that any individuals detained in such institutions are
entitled to take proceedings affording adequate safeguards with a view to
securing a speedy court decision on the lawfulness of their detention. The
Court uses its power to indicate individual or general remedial measures under
Article 46 of the Convention on an exceptional basis, in cases that highlight
systemic or structural problems with the potential to generate significant
numbers of similar complaints in the future.

The judgment is infused with references to the CRPD
and the work of the CRPD Committee. The Court cited with approval Article 14 of
the CRPD (“liberty and security of the person”), the CRPD Committee’s statement
of interpretation on Article 14, its Marlon James Noble v. Australia decision, with facts that are
strikingly similar to those in N. v.
Romania, as well as Article 19 (“living independently and being included in
the community”). Thus, the N. v. Romania
ruling is another step in the process of reconciling the two human rights
instruments, including with respect to such divisive issues as mental health
detention. Also notable is the Court’s willingness to highlight the systemic
underpinnings of the violations found and indicate individual and general
remedial measures to the Romanian State. The Court had previously made similar use
of its remedial powers in another disability case originating from Romania, Centre for Legal Resources on behalf of
Valentin Campeanu, decided in 2014, urging the Romanian authorities to
“envisage the necessary general measures to ensure that mentally disabled
persons […] are afforded independent representation, enabling them to have
Convention complaints relating to their health and treatment examined before a
court or other independent body.” These two judgments, in addition to other
jurisprudence, constitute a strong platform that Romanian advocates may use to push for
badly needed reform in the areas of access to justice and deinstitutionalization.

Tuesday, 22 November 2016

The Court delivered (finally!) a decent judgment in a case I have been involved in - KAOS GL v. Turkey - concerning the restrictions placed on a magazine published by well known LGBT organisation discussing pornography and its place in the lives of LGBT people, justified on the basis of criminal provisions banning obscene publications from public exposure.

Violation of the freedom of expression due to restriction being totally disproportionate as well as sloppy reasoning. Important affirmation of right of LGBT communities to participate in public debate with issues related to their identity.

Nevertheless, the court's view that some kinky paintings reproduced in the magazine (including a metaphorical depiction of painter having sex with his alter ego) may potentially justify some degree of censorship, without meaningful analysis, as well as its glossing over extensive evidence of this case being part of a wider campaign by Turkish authorities to stifle LGBT activism, were disappointing.

All in all, an ok-enough ruling that may provide some momentary respite to hard-pressed activists in Turkey.

Constantin Cojocariu - Hit and Miss: Procedural Accommodations Ensuring the Effective Access of People with Mental Disabilities to the European Court of Human Rights

Here is the introduction of the article:

Persons with mental
disabilities in Eastern Europe suffer
from high and well-documented rates of discrimination and abuse, which are
often embedded in the law. Phenomena such as large-scale institutionalization or
denial of legal capacity are frequently described as benevolent measures aimed
at ensuring the welfare of those concerned. The advent of the UN Convention on
the Rights of Persons with Disabilities (hereinafter referred to as the ‘CRPD’),
widely ratified across Europe, highlighted these structural inequities and
framed them as violations of basic human rights. The European Court of Human
Rights (“hereinafter referred to as ‘the Court’), as the preeminent regional
mechanism for human rights protection, would appear to hold great potential for
those seeking to challenge the status quo and achieve systemic change. However,
its output on disability rights to date has been quite limited and rather
disappointing. The physical, social and economic barriers that hinder access to
justice at all levels of the judicial system may at least partially explain this
dearth of jurisprudence. At the same time, many disability cases that do reach
the Court are dismissed on admissibility grounds, revealing a lack of
comprehension on the part of the Strasbourg judges of the specificity of
disability rights claims, or result in judgments that often replicate and
legitimize the oppressive narratives and structural discrimination that are prevalent
at the national level.
A close inspection of the Court’s jurisprudence reveals how procedural devices
such as “standing”, “material scope”, “legal representation”, “margin of
appreciation”, “exhaustion of domestic remedies” have been used to render
disability claims non-justiciable under the European Convention on Human Rights
(hereinafter “the Convention”).

This article
examines recent jurisprudential developments on disability rights in an attempt
to decipher whether disabled people benefit from “practical and effective”
access to the Court. The relevant reference point is Article 13 of the CRPD on access
to justice, which requires States Parties to “ensure effective access to
justice for persons with disabilities on an equal basis with others, including
through the provision of procedural […] accommodations, in order to facilitate
their effective role […] in all legal proceedings.” For its part, the Court has
also emphasized that “special procedural safeguards may prove called for in
order to protect the interests of persons who, on account of their mental
disabilities, are not fully capable of acting for themselves.” This article offers a practitioner’s perspective, based on the author’s
ten-year experience of litigating high profile disability cases before the Court.

The first part
of the article examines the concept of“de facto representation” introduced for the first time recently in the
case Câmpeanu v. Romania, and its potential
implications for proxies seeking to introduce complaints on behalf of people
with disabilities suffering from abuse, lacking relatives or other guardians
and who are unable to instruct a lawyer. The second part of the article
explores the manner in which the Court deals with disabled applicants unable to
secure adequate legal representation. The Court’s practice in this respect has
been quite diverse, revealing a deeper ambivalence in its jurisprudence towards
measures that interfere with a person’s legal capacity in the form of partial
or plenary guardianship. Finally, the last part looks more closely at some of
the recent changes in the Court’s procedure, and in particular the ongoing move
to tighten as well as enforce more strictly the admissibility criteria for
individual petitions, likely to have a disproportionate impact on disabled applicants.